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I have been asked to circulate the materials below.<br><br>
David Andrews<br><br>
<br><br>
The Proposed Remediation Plan provides as follows:<br>
(1) All Cardtronics-owned ATMs
in Massachusetts will be Voice-guided no later than June 30, 2010.<br>
(2) By December 31, 2010, at
least ninety percent (90%) of all transactions at covered ATMs occurring
within the borders of Massachusetts will occur on ATMs that are
Voice-guided. <br>
(3) All Cardtronics-owned ATMs
nationally will be Voice-guided no later than December 31, 2010, with the
exception of Cardtronics-owned ATMs located in 7-Eleven stores
which will be Voice-guided no later than March 31, 2011. <br>
(4) By March 31, 2011, at least
ninety percent (90%) of all transactions at covered ATMs nationally will
occur on ATMs that are Voice-guided. <br>
<a name="_ftnref1"></a>(5) With
the assistance of the NFB, Cardtronics has developed enhanced scripts for
the great majority of the ATMs it owns. With the exception of
Cardtronics-owned ATMs located in 7-Eleven stores, on or before December
31, 2010 Cardtronics will install enhanced scripts on all
Cardtronics-owned ATMs, except where it is not technologically feasible
to do so, in which cases, on or before December 31, 2010, Cardtronics
shall either (i) replace such ATMs with ATMs on which an enhanced script
can and will be installed, or (ii) remove such ATMs from the
Cardtronics-owned fleet. Cardtronics-owned ATMs located in 7-Eleven
stores will be Voice-guided no later than March 31, 2011. Any script on
any Cardtronics-owned ATM, including the enhanced scripts, shall meet the
requirements set forth in the definition of “Voice-guided” and
“Voice-Guidance” set forth in the Final Order[1] and as supplemented in
paragraph 6 of this Order.<br>
(6) With the exception of
Cardtronics-owned ATMs located in 7-Eleven stores, by December 31, 2010,
all Cardtronics-owned Voice-guided ATMs and those merchant-owned,
Voice-guided ATMs that Cardtronics designates as making up a portion of
the ninety percent (90%) transaction requirements of paragraphs 2 and 4
above, will have tactilely discernible controls, that is, operating
mechanisms used in conjunction with speech output that can be located and
operated by feel. When a numeric keypad is part of the tactilely
discernible controls, all function keys will be mapped to the numeric
keypad and, except for those remaining Wincor ATMs installed in Target
stores prior to June 2007, the numeric keypad will have an “echo” effect
such that the user’s numeric entries (other than the entry of a personal
identification number) are repeated in voice form. All tactilely
discernible controls will otherwise comply with applicable
regulations. All Cardtronics-owned ATMs located in 7-Eleven stores
will meet these requirements no later than March 31, 2011. <br>
<a name="_ftnref2"></a>(7) With
the exception of Cardtronics-owned ATMs located in 7-Eleven stores, by
December 31, 2010, all Cardtronics-owned ATMs will have appropriate
signage as identified in the Final Order Ex. 1.[2] All
Cardtronics-owned ATMs located in 7-Eleven stores will meet these
requirements no later than March 31, 2011. By December 31, 2010,
Cardtronics will send such signage to each of its Merchant-owned
customers that operate a Voice-guided ATM (with the exception of those
customers for whom Cardtronics physically placed Braille signage on each
of the customer’s Voice-guided ATMs after April 9, 2007) requesting that
those customers install such signage on their Voice-guided ATMs.
Cardtronics will include a letter from the NFB describing the importance
of such signage with its request. On or before February 1, 2011,
Cardtronics will provide the NFB with the approximate date on which it
placed signage on each of the Merchant-owned Voice-guided ATMs or sent
the appropriate signage by mail.<br>
(8) By December 31, 2012,
Cardtronics will cause to have inspected all Cardtronics-owned,
non-branded ATMs to ensure that the Voice-guided features of these ATMs
are in working condition. Approximately 10,000 of these inspections
shall take place in calendar years 2010 and 2011, with the balance taking
place in calendar year 2012. To the extent Cardtronics can
demonstrate to Class counsel that within the first two years of
conducting such inspections the Voice-guided features are in compliance
with the definition of Voice-guidance, the parties shall meet to discuss
the results of these inspections and may agree in writing that
Cardtronics shall cause to have inspected a minimum of 1,000
Cardtronics-owned, non-branded ATMs each year for the remainder of the
term of the Agreement. These inspections will be documented in a
manner showing that the person conducting the inspection used headphones
to listen to the voice script on the ATM. Similarly, in the course
of conducting its routine inspections of Cardtronics-owned, branded ATMs,
such inspections shall be documented in a manner showing that the person
conducting the inspection used headphones to listen to the voice script
on the ATM. On a monthly basis, Cardtronics shall report the
results of all inspections required by this paragraph to Class
counsel.<br>
<a name="_ftnref3"></a>(9) In
addition to the reporting requirements identified in the Final Order,[3]
Cardtronics will report monthly between June 1, 2010 and December 31,
2011. For the period between June 1, 2010 and December 31, 2011,
Cardtronics will add to the information it is currently reporting for
each Cardtronics-owned ATM whether the enhanced script has been installed
on the ATM, as well as the month and year of such installation. No
later than October 31, 2010, for each Cardtronics-owned ATM on which it
is not technologically feasible to install an enhanced script,
Cardtronics will indicate whether it will replace such ATM with a
Voice-guided ATM or remove the ATM from the fleet. <br>
(10) Cardtronics will keep its ATM locator
on its website up to date as to whether a covered ATM is equipped with
Voice-guidance.<br>
(11) Notice of the Proposed Remediation
Plan will be provided to the Class in the manner described below.<br>
(12) In addition to the testing costs set
forth in Final Order Ex. 1, Cardtronics will pay $60,000 to the NFB to be
used for interim testing and other compliance monitoring by the NFB
taking place in 2010 and the first quarter of 2011. The NFB shall
provide Cardtronics with invoices as testing is completed, to be payable
by Cardtronics within 30 days of receipt of each invoice.<br>
(13)
Cardtronics will pay the NFB $145,000 for the reasonable fees and costs
incurred by the NFB as a result of Cardtronics’ failure to comply with
the Final Order. This amount includes attorneys’ fees and testing
costs that the NFB incurred due to the failure of Cardtronics to comply
with the Final Order and shall be paid in two equal installments of
$72,500, one upon the effective date of this Court’s final approval of
the Proposed Remediation Plan and the second 60 days thereafter. <br>
(14) The
requirements set forth in Final Order Ex. 1 shall remain in effect, in
whole or in part, for eight years from the date of this Court’s final
approval of the Proposed Remediation Plan. The Parties may agree in
writing to extend the requirements of Final Order Ex. 1 further or the
Court may so order in connection with paragraph 13.3.
Notwithstanding any expiration of Final Order Ex. 1, paragraphs 6, 7 and
13 of Final Order Ex. 1 shall continue to remain in effect in perpetuity.
<br>
(15) To the
extent that the requirements set forth herein are inconsistent with any
provision of Final Order Ex. 1, this Order controls. All other
terms and requirements of the Final Order, including Final Order Ex. 1,
will remain in full force and effect.<br>
<br><br>
<br>
<a name="_ftn1"></a>[1] Final Order Ex. 1 at 4.<br>
<a name="_ftn2"></a>[2] <i>See</i><a name="_ftn2"></a> Final Order
Ex. 1 at ¶ 4.2.<br>
<a name="_ftn3"></a>[3] <i>See id.</i><a name="_ftn3"></a> at ¶
4.4.1.<br>
<br><br>
<br><br>
<div align="center"><b>UNITED STATES DISTRICT COURT<br>
FOR THE DISTRICT OF MASSACHUSETTS<br>
</b> <br>
</div>
COMMONWEALTH OF MASSACHUSETTS, <i>et al.</i>,<br>
Plaintiffs<i>,</i> <br>
<div align="right">v.<br>
</div>
CARDTRONICS, INC., <i>et al.</i>,<br>
Defendants.<br>
<div align="right"> <br>
</div>
)<br>
<b> <br>
<br>
<br>
<br>
</b>Civil Action No. 03-11206-MEL<br>
<b> <br>
</b> <br>
<b><u> <br>
</u></b>)<br>
)<br>
)<br>
)<br>
)<br>
)<br>
)<br>
)<br>
)<br><br>
<br>
<div align="center"><b>NOTICE OF PROPOSED REMEDIATION PLAN
CONCERNING<br>
FINAL ORDER RELATING TO CLASS ACTION SETTLEMENT<br>
AGREEMENT AND HEARING TO BE HELD ON September 15, 2010 @ 2:30pm<br>
</b></div>
TO ALL MEMBERS OF THE NATIONWIDE CLASS CERTIFIED BY THIS COURT TO INCLUDE
BLIND PATRONS OF AUTOMATED TELLER MACHINES (“ATMs”) OWNED OR OPERATED BY
EITHER CARDTRONICS, INC. OR CARDTRONICS USA, INC. (collectively,
“Cardtronics”)<br>
<br>
On December 4, 2007, this Court granted final approval of a class action
settlement agreement entered into between Plaintiffs, the Commonwealth of
Massachusetts, the National Federation of the Blind (“NFB”), and several
individual blind persons, and Defendants, Cardtronics, Inc. and
Cardtronics, LP (now Cardtronics USA, Inc.) (collectively “Cardtronics”)
concerning, among other things, the accessibility of ATMs owned or
operated by Cardtronics to blind patrons under the Americans with
Disabilities Act (“ADA”) and Massachusetts state laws. <br>
<br>
DUE TO CARDTRONICS’ INABILITY TO MEET A NUMBER OF IMPORTANT REQUIREMENTS
OF THIS COURT’S FINAL ORDER OF DECEMBER 4, 2007, THE PARTIES HAVE REACHED
AGREEMENT ON A PROPOSED REMEDIATION PLAN, SUBJECT TO APPROVAL BY THIS
COURT, THAT REQUIRES CARDTRONICS TO MEET ALL OF THEIR PRIOR OBLIGATIONS
WITH EXTENSIONS OF TIME TO DO SO, PLUS ADDITIONAL OBLIGATIONS INTENDED TO
ENSURE THAT THE MEMBERS OF THE CLASS ENJOY THE BENEFITS SET FORTH IN THE
ORIGINAL SETTLEMENT AGREEMENT AND FINAL COURT ORDER. <br>
Cardtronics has agreed to a remediation plan that includes, among other
actions, ensuring that with the exception of Cardtronics-owned ATMs
located in 7-Eleven stores, all ATMs owned by Cardtronics will offer
voice guidance through a standard headphone jack located on the face of
the ATM by no later than December 31, 2010; Cardtronics-owned ATMs
located in 7-Eleven stores will offer voice guidance through a standard
headphone jack located on the face of the ATM by no later than March 31,
2011, and that by March 31, 2011, at least ninety percent (90%) of all
Transactions at Covered ATMs shall occur on ATMs that are Voice-guided or
otherwise accessible to Blind people. Cardtronics has agreed to
develop improved voice-guided scripts for all Cardtronics-owned ATMs to
ensure that blind customers can easily access all ATM functions.
Cardtronics has also agreed to institute an inspection program intended
to ensure that voice-guided ATMs remain operational for blind
customers. A full copy of the proposed remediation plan is
available on the NFB’s website:
<a href="http://www.nfb.org/">www.nfb.org</a> and on the Cardtronics’
website:
<a href="http://www.cardtronics.net/news/nfb_remediationplan.asp."><u>
www.cardtronics.net/news/nfb_remediationplan.asp.</a></u> The
locations of the existing ATMs covered by the Final Order and by the
proposed remediation plan, with designation of voice-guidance status, can
be obtained through Cardtronics’ ATM locator feature, available at
<a href="http://www.cardtronics.net/about/atmlocator.asp">
www.cardtronics.net/about/atmlocator.asp</a>. <br>
<br>
As part of the proposed remediation plan and subject to Court approval,
Cardtronics has agreed to pay the amount of $145,000 in attorneys’ fees
to the attorneys representing the class. These amounts will not
detract from Cardtronics duties to provide accessible ATMs to the
class. The Court will conduct a hearing on the motion of class
counsel for their attorneys’ fees at the date and time set forth in the
following paragraph. Cardtronics has also agreed to pay an
additional $60,000 to the NFB for testing that the NFB will conduct to
ensure compliance with the remediation plan requirements. <br>
<br>
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of
Civil Procedure and an Order of the Court dated <u>May 18, 2010</u>, and
as thereafter amended that a Final Approval Hearing will be held on
<u>September 15, 2010</u>, at 2:30pm, before that Court in the United
States Courthouse, One Courthouse Way, Boston, Massachusetts 02210.
The purpose of this Final Approval Hearing is to determine whether the
proposed remediation plan should be approved by the Court as fair,
reasonable and adequate and whether the application for award of
attorneys’ fees and reimbursement for expenses should be approved. <br>
<br>
Class Members who wish to object to the proposed settlement must provide
notice of and explanation of their objection in writing to the Court at
the address above, with copies to Counsel at the addresses provided
below, no later than <u>Monday, August 30, 2010</u>. Only Class
Members filing timely objections may request to present their objections
at the Final Approval Hearing.<br>
<br>
Office of the Massachusetts Attorney General Attn: Maura Healey, Esq.
<br>
100 Cambridge Street<br>
11<sup>TH</sup> floor<br>
Boston, MA 02108<br>
<br>
Brown, Goldstein & Levy, LLP<br>
Attn: Sharon Krevor-Weisbaum, Esq.<br>
120 E. Baltimore Street<br>
Suite 1700<br>
Baltimore, MD 21202<br><br>
Joseph Kociubes, Esq.<br>
Bingham McCutchen LLP<br>
150 Federal Street<br>
Boston, MA 02110-1726<br>
<br>
FOR FURTHER INFORMATION, VISIT
<a href="http://www.cardtronics.net/news/"><u>
www.cardtronics.net/news/</a></u> OR CONTACT COUNSEL FOR THE
PLAINTIFFS:<br>
<br>
Commonwealth of Massachusetts <br>
Office of Attorney General<br>
Disability Rights Project<br>
(617) 727-2200<br>
<a href="http://www.mass.gov/ago">www.mass.gov/ago</a><br>
<br>
OR<br>
<br>
Brown, Goldstein & Levy, LLP<br>
(410) 962-1030<br>
<u><a href="http://www.browngold.com/">www.browngold.com</a> <br>
</u> <br>
EXCEPT AS INSTRUCTED IN THE NOTICE, PLEASE DO NOT CONTACT THE COURT.<br>
<br><br>
<br>
<br>
Dated: <u>May 18,
2010</u>
By Order of the<br>
United States District Court<br>
For the District of Massachusetts<br><br>
<br>
<div align="center">UNITED STATES DISTRICT COURT <br>
FOR THE DISTRICT OF MASSACHUSETTS<br>
</div>
<br>
COMMONWEALTH OF MASSACHUSETTS, <i>et al.</i>, <br>
<br>
Plaintiffs<br>
<br>
v.<br>
<br>
E*TRADE ACCESS, INC., <i>et al.</i>, <br>
<br>
Defendants<br>
<br>
<br>
<br>
<br>
CIVIL ACTION NO. 03-11206-MEL<br>
<div align="center"><b><u> <br>
<br>
FINAL ORDER AND JUDGMENT<br>
</u></b></div>
<br>
Plaintiffs, Commonwealth of Massachusetts, National Federation of the
Blind, Inc. (“NFB”), Adrienne Asch, Jennifer Bose, Norma Crosby, Dwight
Sayer, Robert Crowley, Jr., Raymond Wayne, Terri Uttermohlen, and Bryan
Bashin, seek final approval of the class action settlement that was
approved preliminarily by this Court on July 26, 2007. <i>See
</i>Memorandum and Order Granting Unopposed Motion for Preliminary
Approval of Class Action Settlement and for Fairness Hearing
(“Preliminary Approval Order”). Specifically, Plaintiffs have moved
the Court for an Order: (1) finding that the class action Settlement
Agreement between Plaintiffs and Defendants, Cardtronics, LP, and
Cardtronics, Inc. (collectively “Cardtronics”), is a fair, reasonable and
adequate settlement of all of the claims of the class against Defendants,
overruling the single objection to the proposed settlement and finding
that each class member shall be bound by the Settlement Agreement,
including its release; (2) finding that the Notice published to the class
satisfies the requirements of due process and Fed. R. Civ. P. 23; (3)
approving an award of attorneys’ fees and costs by Defendants to
Plaintiff, NFB, in the amount of $900,000, as agreed to by the parties;
(4) dismissing this lawsuit on the merits and with prejudice as to all
claims in the lawsuit against all Defendants; (5) attaching and
incorporating by reference the terms of the Settlement Agreement; and (6)
retaining jurisdiction of all matters relating to the interpretation,
administration, implementation, effectuation and enforcement of the
Settlement Agreement. <br>
<b>I.</b>
<b>Background <br>
A. Plaintiffs’ Claims<br>
</b><a name="_ftnref1"></a>
Cardtronics currently owns and/or operates at least 23,300 ATMs
throughout the United States, including approximately 15,000 ATMs
formerly owned and/or operated by Defendant E*TRADE Access, Inc.
(“Access”).[1] Approximately half of these ATMs are owned by
independent merchants who are customers of Cardtronics (“Merchant-Owned
ATMs”). This litigation concerns Plaintiffs’ request that
Cardtronics’s fleet of ATMs be made accessible to and independently
useable by blind people through the use of voice-guidance
technology. <br>
Some
of the ATMs in the Cardtronics fleet already have voice guidance.
Those ATMs that are not currently voice-guided vary in their capacity to
be made voice-guided. Many newer machines have the capacity to be
upgraded to provide voice-guidance through a straightforward retrofit
process (“Upgradeable ATMs”). Other, older, machines are not able
to be upgraded and must be replaced completely in order to make voice
guidance available. <br>
Plaintiffs’ Fourth Amended and Supplemental Class Action Complaint
(“Fourth Amended Complaint”) alleges that Cardtronics has failed to make
all of the ATMs it owns and/or operates accessible to blind individuals
in violation of Title III of the ADA, 42 U.S.C. §§
12181 <i>et seq.,</i> and Section 4.34.5 of the Department of Justice
Standards for Accessible Design, 28 C.F.R. pt. 36, app. A (“Standards”)
(requiring that ATMs be “accessible to and independently useable by
persons with vision impairments”). Title III is enforceable through
a private right of action for injunctive relief and prevailing plaintiffs
are entitled to attorneys’ fees. <i>See </i>42 U.S.C. §§
12188(a)(1), (2) and 12205. Plaintiffs have also alleged violations
of the Massachusetts Public Accommodations Act (“MPAA”), Mass. Gen. Laws
ch. 272, §§ 92A and 98, and the Massachusetts Equal Rights Act (“MERA”),
Mass. Gen. Laws ch. 93, § 103.<br>
Although numerous procedural and substantive disputes have arisen
throughout this litigation, the case turns primarily on the vigorously
contested issues of whether Defendants’ ATMs are in violation of the
Standards and, if they are, whether Plaintiffs are entitled to an
injunction that would require Cardtronics to install voice-guidance
capabilities on all ATMs it owns and/or operates, including
Merchant-Owned ATMs. The lawsuit also includes claims against
Defendant E*TRADE Bank, Inc. concerning its banking policies applicable
to consumers’ use of the Cardtronics ATMs. These claims are
derivative of the claims addressing the accessibility of the Cardtronics
ATMs.<br>
<b>
B. Pre-Filing Settlement
Negotiations <br>
</b> On
June 9, 2003, after lengthy negotiations, the Commonwealth and the NFB
entered into a Partial Settlement Agreement (“PSA”) with Defendants
Access and E*TRADE Bank, Inc. (collectively “E*TRADE”), pursuant to which
Access agreed to equip the ATMs it owned with voice guidance over a
period of two and one-half years. The parties were not able to
reach agreement with respect to Merchant-Owned ATMs. <br><br>
<b>C. Litigation<br>
</b>On June 23, 2003, the Commonwealth and the NFB, along with several
individual blind people and the NFB’s Massachusetts affiliate, filed the
present suit against E*TRADE. From its inception, this litigation
has been hard-fought. As fully detailed in the Preliminary Approval
Order, this complex case involved numerous dispositive motions,
voluminous document discovery and several significant discovery-related
motions.
<br>
<b>II. Summary of the
Settlement <br>
</b>
After an all-day mediation on April 9, 2007, and following further
negotiations over the course of more than two months, the parties
executed the Settlement Agreement on June 21,
2007. <br>
In
summary, the settlement requires:<br>
All
Cardtronics-Owned ATMs will be voice-guided by the end of this year, with
two exceptions: a set of approximately 1,600 machines that already
have voice-guidance, but do not have, as otherwise required by the
Settlement Agreement, audible verification of all of the inputs by the
ATM user; and a set of no more than 177 machines will be voice-guided by
mid-2008. (Settlement Agreement, ¶ 3.1.)<br>
As of April 9,
2007 and going forward, Cardtronics will only install Cardtronics-Owned
ATMs that are voice-guided. (Settlement Agreement, ¶ 3.1)<br>
As of April 9,
2007 and going forward, Cardtronics will only sell or make available to
merchants ATMs that are voice-guided. (Settlement
Agreement, ¶ 3.2.1.)<br>
Cardtronics will
identify the smallest subset of Merchant-Owned ATMs without voice
guidance that collectively account for 80% of transactions at
Merchant-Owned ATMs (“High Volume Merchants”) and will, within ninety
(90) days of approval, offer those merchants that have Upgradeable ATMs
the opportunity to upgrade to add voice guidance at no cost, and will
offer those merchants whose machines are not upgradeable the opportunity
to purchase a voice-guided machine at Cardtronics’s wholesale cost.
(Settlement Agreement, ¶ 3.2.2.)<br>
Regardless of the
outcome of this marketing plan, Cardtronics will ensure that, by July 1,
2010, at least ninety (90) percent of all transactions on the ATMs
covered by the settlement occur on voice-guided ATMs. (Settlement
Agreement, ¶ 3.3.)<br>
After July 1,
2010, Cardtronics will not add or renew any merchant-owned ATMs that are
not voice-guided, so that any remaining ATMs constituting less than 10%
of transaction volume that are not yet voice-guided will either become so
or be eliminated. (Settlement Agreement, ¶ 3.3.2.)<br>
Any additional
functions that are added to ATMs covered by the settlement will be
accessible to blind patrons within ninety (90) days unless Cardtronics
believes doing so would not be technically feasible without causing undue
burden or delay, in which case the parties are to meet and confer to
attempt to eliminate the obstructions to adding such new functions.
(Settlement Agreement, ¶ 3.7.) <br>
Cardtronics-owned
ATMs acquired after final approval of the settlement agreement shall be
voice-guided within two (2) years; after-acquired Merchant-owned ATMs
that are Merchant-Owned by High Volume Merchants will receive the upgrade
or replacement offers described above. (Settlement Agreement, ¶
3.6.) <br>
Cardtronics will
provide web-based information and signage to assist blind patrons in
identifying which of its ATMs are voice-guided. (Settlement
Agreement, ¶¶ 4.1, 4.2.)<br>
Cardtronics will
report to Class Counsel throughout the term of the Settlement Agreement
concerning the number of voice-guided ATMs and the percentage of
transactions occurring on such ATMs, and that progress will be verified
by Cardtronics and monitored by the NFB. (Settlement Agreement, ¶
4.4.) <br>
Cardtronics must
comply with any future regulatory requirements that impose additional
requirements, but if regulations require less than the Settlement
Agreement, the Settlement Agreement controls. (Settlement Agreement
¶5.1)<br>
Class members will
release claims for injunctive relief and attorneys’ fees under Title III
of the ADA, the MPAA, the MERA, and any other claims held by the named
plaintiffs to the extent such claims relate to the accessibility of ATMs
to blind people. Class members also release claims for injunctive
relief under state law to the extent it incorporates or is equivalent to
Title III. (Settlement Agreement, ¶¶ 7.1, 7.2.) <br>
Class members
(excepting the named plaintiffs) do not release claims for damages.
(Settlement Agreement, ¶ 7.1.3.) <br>
Cardtronics will
pay $900,000 in attorneys’ fees to the NFB and make a contribution of
$100,000 to the local consumer aid fund of the Massachusetts Attorney
General. (Settlement Agreement, ¶¶ 9.1, 9.2.)<br>
Because the Settlement Agreement applies to all Cardtronics ATMs --
including former E*TRADE ATMs -- it supercedes the earlier PSA among
E*TRADE, the Commonwealth, and the NFB. Although E*TRADE is not a
party to the Settlement Agreement, that agreement concludes this
litigation and calls for the dismissal with prejudice of all claims in
this case against all Defendants. (Settlement Agreement, ¶
2.7(c).) The implementation of voice guidance on the ATMs makes it
unnecessary for E*TRADE Bank to change its policies as sought in the
lawsuit. <br>
In the
Settlement Agreement, the parties agreed that the Court should retain
jurisdiction of this case for purposes of the interpretation,
administration, implementation, effectuation, and enforcement of this
Agreement. (Settlement Agreement, ¶ 2.7(d).) In addition,
Defendants have withdrawn their opposition to Plaintiffs’ motion for
leave to file a Fourth Amended Complaint (Settlement Agreement, ¶ 2.1)
and the Court has granted the parties’ joint motion for certification of
a settlement class, which includes all persons who are Blind patrons of
ATMs covered by the Settlement Agreement. <br>
<b>III. Preliminary Approval<br>
</b> As
mentioned, on July 26, 2007, this Court granted Plaintiffs’ Unopposed
Motion for Preliminary Approval of Class Action Settlement and scheduled
a Fairness Hearing on the proposed settlement for December 4, 2007.
In the Preliminary Approval Order, the Court approved the parties’
proposed plan for notifying class member of the settlement, as well as
the form of the notice to be utilized for this purpose
(“Notice”). <br>
<b>IV. Notice to the Class<br>
</b>The Court finds that the Notice approved in the Court’s Preliminary
Approval Order was made available on Cardtronics’s website from
approximately August 23, 2007 to November 1, 2007 and that a copy of the
Notice was also available on the NFB’s website during that same
period. <br>
The Court also finds that a copy of the Notice was mailed to a list of
over 900 organizations, including a number composed of, and/or focused on
the issues of, blind people. Of those mailings, 36 were
returned due to incorrect addresses. The correct addresses were
ascertained for 11 of those returned mailings and the Notice was then
sent to those correct addresses. In addition, the Notice was
emailed to 1,036 email addresses relating to the organizations referenced
above, with a cover letter requesting that the recipient post and forward
the Notice. Of those emails, 186 were returned as
undeliverable. Fifteen organizations to whom the Notice was emailed
notified class counsel that they had forwarded the Notice to other
individuals or lists of individuals thought to be class members.
Another ten organizations notified class counsel that they had posted the
Notice on their websites. The NFB sent the Notice to over 50 email
lists of blind individuals, including lists of blind lawyers, students,
and travelers. In each of these paper and electronic mailings,
counsel for the class offered to provide Braille versions of the Notice
and/or the Settlement Agreement. Class counsel ultimately received
and honored six requests for Braille documentation. <br>
The Court finds further that the Notice was published in the
August/September edition of the <i>Braille Monitor</i>, which is the
publication of the NFB and is regularly sent to its approximately 50,000
members, among others. The Notice was also published in the
September, 2007, edition of the <i>Braille Forum</i>, as well as in the
<i>New York Times</i>, the <i>Los Angeles Times</i>, and <i>USA Today
</i>on August 28, 2007.<br>
In addition, the Court finds that there has been only one objection to
the proposed settlement. This objection purports to be on behalf of
Mason P. James, of Loveland, Texas, and states only that “[m]e wish to
object to the proposed settlement.” <i>See </i>Objection by Mason
P. James (Sept. 27, 2007, Paper No. 270).<br>
<b><u>DISCUSSION<br>
</u>I. The
Settlement Agreement is Granted Final Approval.<br>
</b> A
court may approve the settlement of a class action only upon finding that
it is “fair, reasonable, and adequate.” Fed. R. Civ. P.
23(e)(1)(C); <i>see also City P’ship Co. v. Atlantic Acquisition Ltd.
P’ship</i>, 100 F.3d 1041, 1043 (1st Cir. 1996) (same). The First
Circuit has recognized a clear policy of encouraging settlements in class
action cases, and has stated that “[w]hen sufficient discovery has been
provided and the parties have bargained at arms-length, there is a
presumption in favor of the settlement.” <i>City P’ship</i>, 100
F.3d at 1043. In determining the fairness, reasonableness and
adequacy of a proposed class action settlement, several courts in this
district have looked to the following factors set forth in <i>City of
Detroit v. Grinnell Corp.</i>, 495 F.2d 448, 463 (2d Cir. 1974),
<i>overruled on other grounds by Missouri v. Jenkins</i>, 491 U.S. 274
(1989): <br>
(1) the complexity, expense and likely duration of the litigation; (2)
the reaction of the class to the settlement; (3) the stage of the
proceedings and the amount of discovery completed; (4) the risks of
establishing liability; (5) the risks of establishing damages; (6) the
risks of maintaining the class action through the trial; (7) the ability
of the defendants to withstand a greater judgment; (8) the range of
reasonableness of the settlement fund in light of the best possible
recovery; (9) the range of reasonableness of the settlement fund to a
possible recovery in light of all the attendant risks of
litigation. <br>
<br>
For all of the reasons set forth in the Court’s Preliminary Approval
Order, an analysis of these factors strongly supports this Court’s final
approval of the Settlement Agreement as fair, reasonable and
adequate. In addition, this Court overrules the single objection to
the proposed settlement, as no reasons were provided for that objection
as required by the Notice approved by the Court. Therefore, this
Court also finds that all class members are bound by the Settlement
Agreement, including its release provisions. <br>
<b>II. Notice to the Class<br>
</b>
Rule 23(e) states that “notice of the proposed dismissal or compromise
shall be given to all members of the class in such manner as the court
directs.” The notice must satisfy Rule 23, as well as due process
requirements. <i>Cf. Besinga v. United States</i>, 923 F.2d 133,
136-37 (9<sup>th</sup> Cir. 1991) (requirements of due process and Fed.
R. Civ. P. 23(c)(2)(B) are similar). “‘[I]t is the court’s duty to
ensure that the notice ordered is reasonably calculated to reach the
absent class members.” <i>Reppert v. Marvin Lumber and Cedar
Co.</i>, 359 F.3d 53, 56 (1st Cir. 2004) (citations omitted). “When
individual notice is infeasible, notice by publication in a newspaper of
national circulation . . . is an acceptable substitute.”
<i>Mirfasihi v. Fleet Mortgage Corp.</i>, 356 F.3d 781, 786 (7th Cir.
2004).<br>
This
Court finds that the notice program approved in its Preliminary Approval
Order and now implemented by the parties was the best notice practicable
under the circumstances and satisfied the requirements of due process and
Fed. R. Civ. P. 23. The parties represented that there was no
readily accessible list of the potential class members in this case and
that such a list likely could not be created without enormous effort and
expenditure. Notice here involved a combination of individual
mailing -- through the <i>Braille Monitor</i> and <i>Braille Forum</i> to
tens of thousands of blind people -- and publication in three newspapers
of national circulation: <i>The New York Times</i>, <i>Los Angeles
Times</i>, and <i>USA Today</i>. Under these circumstances,
individual notice was not required in order to satisfy the requirements
of due process and Fed. R. Civ. P. 23.<br>
<b>III. Attorneys’ Fees and
Costs<br>
</b>Class counsel have submitted an Unopposed Petition for an Award of
Attorneys’ Fees and Costs, pursuant to Fed. R. Civ. P. 23(h) and
54(d)(2). Specifically, class counsel request that the Court
approve an award of attorneys’ fees and costs by Defendants to the NFB in
the amount of $900,000, the amount agreed to by the parties as part of
the class action settlement.<br>
The
ADA provides that courts may award the prevailing party its “reasonable
attorney’s fee, including litigation expenses, and costs.” 42
U.S.C. § 12205. Rules 23(h)(1) and (2) require that notice and an
opportunity to object be provided. In this case, the Notice sent
pursuant to the Preliminary Approval Order included the amount of the
fees and provided an opportunity to object and no class member has
objected to the proposed fee award.<br>
In
evaluating a fee petition in a case such as this, the Court is to
consider “the reasonableness of the hours spent and the hourly rate
sought.” <i>Weinberger v. Great Northern Nekoosa Corp.</i>, 925
F.2d 518, 529 (1st Cir. 1991) (quoting <i>In re Spillance</i>, 884 F.2d
642, 647 (1st Cir. 1989)). After due consideration of the filings
of class counsel and the relevant case law cited therein, this Court
finds that a fee award in the amount of $900,000 is well within the
bounds of reasonableness under the circumstances of this case. The
time spent by class counsel in litigating this complex case clearly was
justified. In addition, the lodestar amount – calculated by
multiplying these hours by reasonable prevailing rates – is almost twice
the amount agreed upon in the settlement. The Court finds that the
hourly rates charged by class counsel are commensurate with the rates
charged by Boston attorneys of comparable experience in comparable
matters and that the rates actually billed to the NFB were below those
rates. In addition, the award sought is well below the actual
amount of fees and costs paid by the NFB in connection with this
litigation. For these reasons, the Court approves the fee award
agreed to by the parties as part of the Settlement Agreement. <br>
<b>IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:<br>
</b>1. This Court has
jurisdiction over the subject matter of this lawsuit and over all of the
parties to the lawsuit, including the named Plaintiffs, all members of
the class, and Defendants.<br>
2. The Court adopts and
incorporates the findings of the Preliminary Approval Order and hereby
approves the Settlement Agreement as fair, reasonable and adequate in all
respects. This is especially so in view of the complexity, expense
and probable duration of further litigation, the risks of establishing
liability, the intensive arm’s length negotiations of experienced counsel
and the reasonableness of the relief obtained, considering the range of
possible outcomes and the attendant risks of litigation.<br>
3. The Court overrules
the single objection to the settlement and finds that each class member
is bound by the Settlement Agreement, including its release.<br>
4. The Court finds that
the Notice published to the class satisfies the requirements of due
process and Fed. R. Civ. P. 23.<br>
5. The Court finds that
the attorneys’ fees and costs sought by class counsel are reasonable and
approves an award of fees and costs, in the amount of $900,000, as agreed
to by the parties.<br>
6. The Court dismisses
this lawsuit on the merits and with prejudice as to all claims in the
lawsuit against all Defendants.<br>
7. The Court attaches
hereto as Exhibit 1 and incorporates into this Final Order and Judgment
the terms of the Settlement Agreement.<br>
8. The Court retains
jurisdiction of all matters relating to the interpretation,
administration, implementation, effectuation and enforcement of the
Settlement Agreement.<br>
<br>
It is so ordered.<br>
<br>
Dated:
_________________________<br>
U.S.D.J.<br>
<br>
<br>
397837<br><br>
<br>
<a name="_ftn1"></a>[1] On or about June 2, 2004, Cardtronics LP acquired
Access’s ATM business.<br>
<br>
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